Kenya court ruling confirms Kenyatta victory

Kenya's Supreme Court ruled that Uhuru Kenyatta fairly won presidential elections held on March 4 [Reuters]

Nairobi, Kenya - When the Kenyan Supreme Court unanimously declared the presidential election to have been free and fair on Saturday, upholding the victory of president-elect Uhuru Kenyatta and dismissing the petition of rival Raila Odinga, heavy rains had already diminished the crowd of Odinga supporters outside the courtroom in Nairobi.

Military police surrounded the remaining demonstrators, holding riot shields above their heads to protect themselves from the downpour.

"No peace without justice," the soaked few shouted, some met with tear gas as they raced through downtown, breaking the glass of several storefronts.

But within minutes the chaos was over, a mere flicker of the mass violence that followed the 2007 election. Other isolated incidents occurred in some Nairobi slums and in Kisumu, a city in western Kenya. For the most part, a measured peace prevailed, as it has since the March 4 vote.

However, the achievement of peace is tempered by lingering divisions in Kenyan society. With the court case over and no chance of appeal, millions of Kenyans will have to stomach a leadership they believe to be illegitimately elected. The nation's cohesion will again be tested as its future president and vice president stand trial at the International Criminal Court (ICC) at The Hague this summer.

The legal battle began when Kenyan election authorities declared Uhuru Kenyatta the victor of the first round, in which he received 50.07 percent of the vote, narrowly avoiding a runoff by a margin of just8,100 votes.

Runner-up Raila Odinga, who won 43.28 percent of the vote, immediately announced he would contest the results, claiming he was "thwarted again by another tainted election" marred by "massive tampering of votes" and technological failures.

Unlike the last election, Odinga did not call for mass action. Instead he placed his faith in Kenya's Supreme Court, newly reformed in accordance with the 2010 constitution. Many attribute the relative calm during the election cycle to Kenyans' newfound trust in legal recourse.

"This is democracy on trial," Odinga declared, a mantra his supporters would feverishly adopt. During the one week of hearings, his legal team presented evidence of "massaging of results". In one case, they showed a video of a final vote tally in Nyeri County, in which more than 1,000 votes were added to Kenyatta's count when reported to the National Tallying Center. Petitioners, including civil society groups, also identified suspicious inflation of the numbers of registered voters, particularly in Kenyatta strongholds.

A recount from a sample of polling stations identified by Odinga's attorneys revealed irregularities, but the election authorities explained the discrepancies away as "clerical errors". Kenyatta's lead attorney, Fred Ngatia, maintained that "no advantage that can be attributed to such clerical error".

After the Supreme Court unanimously confirmed Kenyatta's victory, Odinga delivered his concession speech at the office of the prime minister, a space he will occupy for little more than a week. This was Odinga's third and final presidential bid; he will be too old to run in the next election.

"Casting doubt on the judgement of the court could lead to higher political and economical uncertainties, and make it more difficult for our country to move forward," Odinga said.

Still, doubt remains. "It was a shock, especially because it was unanimous," commented prominent human rights activist Maina Kiai. "I thought we showed enough evidence. The election was not transparent and it was not verifiable.

"In terms of court, it is finished. But this is not over," said Kiai, hinting at several ongoing investigations led by national and international election monitoring teams.

Kenyatta's next trial

Having won this case, another trial looms. Uhuru Kenyatta and William Ruto face charges at the ICC for their alleged roles in instigating the 2007-08 post-election violence that left more than 1,000 Kenyans dead.

Uhuru and Ruto consistently deny the allegations and urge the evidence against them be reconsidered.

Their requests are not without precedent. Earlier this month, charges against co-accused Francis Maturau were dropped. ICC prosecutor Fatou Bensouda cited "serious investigative challenges, including a limited pool of witnesses", claiming several witnesses had been killed and others were refusing to speak to the prosecution.

In the past weeks, key prosecution witnesses have withdrawn from both Uhuru and Ruto's cases. "It would take a very brave person to testify against them," says Kiai, noting that Kenya lacks a functioning witness protection programme.

"We don't get in contact with ICC indictees unless it is essential."

- British High Commissioner Christian Turner

The indictments seemingly did not hurt Uhuru and Ruto during the election. In fact, some believe the charges may have helped. "ICC is a narrative the Uhuru campaign has cultivated," says Abdullahi Halakhe, a Kenyan political analyst. "They have done a tremendous job turning this election into a referendum on the ICC."

Before the election, Western governments had expressed wariness of dealing with leaders charged with crimes against humanity. "We don't get in contact with ICC indictees unless it is essential," said British High Commissioner Christian Turner in January. "Choices have consequences," echoed US Secretary for African Affairs Johnnie Carson.

Kenyatta's campaign wove these remarks into accusations of Western interference in the election, which it marshalled time and again against foreign journalists and diplomats.

The ICC has been painted as an assault on Kenyan sovereignty. "As I see it, they are trying to colonise us by imposing a certain leader on us because that leader will provide them with what they need," said Uhuru Kenyatta in a December radio interview.

Britain and the United States have had to soften their stance. Minutes after the Supreme Court ruling, British Prime Minister David Cameron extended his congratulations to Kenyatta. From Washington, White House press secretary Jay Carney seconded the sentiment.

"We welcome and wish to underscore the importance of Kenya's commitment to uphold its international obligations, including those with respect to international justice," Carney added.

If relations sour, Western countries stand to lose an important ally.Kenya is key to East Africa's regional economic integration, and is home to heavy foreign investment. Anglo-Irish company Tullow Oil recently found large quantities of oil in northwestern Kenya, and is one of many companies fearing the economic consequences of a potential political problem.

As long as Kenyatta and Ruto continue complying with the ICC, analysts argue, it will be business as usual. The hard-line economic sanctions and political isolation facing Sudanese President Omar al-Bashir, also indicted by the ICC, is not a realistic option in Kenya.